Michael Flynn’s Immunity Request: What it Means and How Immunity Works

President Trump’s former National Security Advisor Michael Flynn has offered to testify about potential Russia connections to the Trump campaign if he is given immunity from prosecution. This raises questions about why he would seek immunity, how the immunity process works, and the potential implications for Flynn and the Trump administration. So here is a primer on Immunity 101, with a focus on the Flynn case.

But the truth is usually more complicated. Seeking immunity doesn’t always mean you are guilty of something. It does indicate the witness has at least some reason to be concerned about potential criminal exposure. In a politically-charged investigation a witness could fear an unfair prosecution even if convinced he did nothing wrong. Flynn’s attorney has said that in the current political maelstrom Flynn would be crazy to testify without immunity. That’s probably sound advice.

Even without knowing the details of what Flynn would say, it’s not surprising he would seek immunity at this early stage. That doesn’t necessarily mean Flynn has some huge bombshell to drop into the middle of the investigation. It also doesn’t necessarily mean Flynn has information about wrongdoing by others. He may be concerned only about his personal liability for things such as his foreign lobbying activities or potentially lying to the FBI. Or it may just be that his lawyer is acting out of an abundance of caution and Flynn ultimately will not be implicated in any crime at all.

Flynn has maximum leverage right now. Nobody can force him to speak. There’s little downside for Flynn in remaining silent and little upside to testifying now without a deal. His lawyer has tantalizingly dangled the claim that Flynn “has a story to tell” and would be happy to tell it if he receives immunity. There’s a lot of political pressure to get to the bottom of this controversy. Investigators may be tempted to give a quick grant of immunity in order to get Flynn’s story. That’s no doubt what Flynn’s attorney is hoping. That seems like a smart play.

What Does Immunity Cover?

Immunity comes into play when a potential witness has a Fifth Amendment right not to incriminate himself. This right to “take the Fifth” applies not just in court but in other proceedings as well, including Congressional investigations. The request for immunity indicates the witness believes that if he testifies truthfully his testimony could potentially implicate him in some kind of criminal activity.

Immunity means only immunity from criminal prosecution. You can’t get immunity to protect yourself from embarrassment, political damage, civil suits, or other non-criminal fallout. A witness who testifies under a grant of immunity is still potentially subject to all of these other consequences — in fact, those other consequences may be more likely once the witness can no longer remain silent.

Immunity also doesn’t protect you from a prosecution for perjury, obstruction of justice, or related charges based on your immunized testimony — just ask Barry Bonds.

The federal immunity statutes,18 U.S.C. 6001-6005, provide what’s known as use and derivative use immunity. That means whatever the witness says can’t be used against him either directly or indirectly in any criminal proceeding. (Transactional immunity – a broader promise never to charge the witness at all – is not provided for by statute. It can only be obtained by agreement with prosecutors and is extremely rare.)

Direct use would be taking a transcript of the witness’s testimony and introducing it at his criminal trial. Derivative use means using the witness’s testimony to track down other leads and discover new information that is then used against the defendant. For example, if investigators used information learned from the immunized testimony to find new witnesses, those witnesses could not be called to testify against the immunized witness in a criminal trial.

The immunity order is supposed to ensure that, at least as far as criminal proceedings are concerned, the witness remains in exactly the same legal position as if he had never testified at all. Nothing that comes out of the immunized witness’s mouth can lead to evidence used against him in a criminal case.

Who Can Grant Immunity?

Under the federal immunity statutes immunity can be granted by the Department of Justice or by Congress. Administrative agencies can grant immunity as well, but they need the Attorney General’s approval. Congress does not – it can grant immunity even if DOJ objects.

If immunity is sought in a court or grand jury proceeding, the Department of Justice obtains an immunity order from a district court judge. DOJ will seek the immunity order after determining the public interest in obtaining the testimony outweighs the public interest in potential prosecution of the witness. The judge signs the order but does not review the wisdom of the decision — whether to grant immunity is up to the Executive Branch.

Congress can likewise seek immunity for any witness called to testify in any Congressional proceeding or committee hearing. In a proceeding before the full House or Senate the request for immunity must be approved by a majority of the members. If the testimony is before a committee, the request must be approved by two-thirds of the members of that committee. Congress must give ten days notice of the request to the Attorney General.

The Attorney General can apply to the court to delay the issuance of the Congressional immunity order for up to an additional twenty days. DOJ can ask Congress not to grant the immunity, but cannot prevent it if Congress insists. Once again, the immunity order is issued by a judge but the court does not review the merits of the decision to grant immunity.

Once a court issues an immunity order, the witness no longer has a Fifth Amendment right to remain silent. The order directs the witness to testify and provides that nothing the witness says can be used against him, directly or indirectly, in a criminal proceeding. If the witness continues to refuse to testify, he is subject to contempt.

News reports refer to Flynn seeking immunity from the FBI, but the FBI itself cannot grant immunity. Immunity in connection with the FBI investigation of the Trump campaign would have to be granted by Department of Justice prosecutors working with the FBI. With Attorney General Sessions recused and calls for an independent prosecutor, there might currently be questions about who exactly within DOJ would make such a decision.

The FBI is investigating but as far as we know no grand jury proceeding has begun. For now, at least, Flynn’s immunity request appears to be primarily in connection with the Congressional investigations. If immunity were granted at this stage it appears Congress would grant it in order to have Flynn testify on Capitol Hill.

News sources on Friday reported that the Senate Intelligence Committee has already rejected Flynn’s request for immunity, calling it premature. Of course, that does not prevent the Committee from reconsidering and granting the request down the road. There have been no reports yet of any decision by the House Intelligence Committee, whose investigation seems mired in partisan gridlock.

Immunity should only be granted if there is a reasonable basis for the witness’s claim of self-incrimination. Investigators obviously don’t want to run around handing out immunity to every witness who refuses to talk without knowing what the witness will say. This is the “buying a pig in a poke” problem – you don’t want to give someone a free pass on unknown criminal conduct and have him end up confessing to the Kennedy assassination or something.

The most common way to determine whether immunity is appropriate is through a proffer session, either from the witness himself or from his attorney. In such an off-the-record proffer the witness or counsel tells investigators what the witness would say if granted immunity. The investigators, in return, agree not to use anything said during the proffer against the witness.

Before any immunity decision is made, Flynn or his attorney likely would give such a proffer to investigators. They may have already done so.

But the witness is not required to give a proffer. Flynn could remain silent and take the position, “You want to know what I have to say? Give me immunity.” This would be a hardball play by Flynn and his lawyer, but again, at the moment they have the most leverage. Granting immunity under those circumstances would certainly be a high-stakes gamble for Congress.

What If the Fifth Amendment Claim Is Bogus?

If a witness claims he has a Fifth Amendment privilege and investigators don’t believe the privilege claim is valid, they should refuse to grant immunity. They can go ahead and subpoena the witness to testify and see whether he in fact invokes the Fifth. Once actually on the stand the witness may decide to testify after all.

If the witness does refuse to testify, investigators can challenge the Fifth Amendment claim in a hearing before a judge. If a judge determines the privilege claim is valid, the witness may continue to remain silent unless and until he is granted immunity. If the judge finds there is no valid Fifth Amendment privilege, the judge may order the witness to testify. If the witness still refuses, he is subject to punishment for contempt of court or contempt of Congress. He may be jailed for contempt and held until he agrees to comply with the court order and testify.

This all takes a fair amount of time, of course, particularly if either side ends up appealing any court orders. If investigators don’t want to wait and the Fifth Amendment claim is even arguably valid, they may decide just to grant the immunity. That keeps the investigation moving rather than spending months litigating the privilege claim.

Does Getting Immunity Mean Flynn Could Never Be Prosecuted?

Strictly speaking, no. A grant of immunity under the federal immunity statutes doesn’t actually mean there is no way you can ever be prosecuted. The statutes provide only that in the event you are prosecuted your own testimony can’t be used against you directly or indirectly.

Theoretically the government can still prosecute a witness who has testified under a statutory grant of immunity. In such a case the government must establish that none of the evidence it will use is derived in any way from the immunized testimony. If there is a question the court will hold a hearing, and the government must prove by a preponderance of the evidence that it has an independent basis for each piece of evidence.

But practically speaking, if Congress agrees to immunize Flynn he almost certainly will never be prosecuted. Immunized witnesses rarely are. Even if they want to prosecute, it’s usually quite difficult for the government to meet the burden of proving that its case was not tainted by immunized testimony. The most famous example of this problem involves the prosecution of Oliver North.

Oliver North testifies on Capitol Hill

Lessons of the Oliver North Case

Oliver North was a member of the National Security Council staff under President Reagan. He was implicated in the Iran-Contra affair, where the U.S. government illegally sold weapons to Iran and used the money to fund the Contra rebel group in Nicaragua. Iran-Contra led to an Independent Counsel investigation, and North was one of the targets of that investigation.

While the criminal investigation was going on, North was subpoenaed to testify before a joint Congressional committee that was also investigating Iran-Contra. Congress granted North immunity, against the wishes of the criminal prosecutors. He subsequently testified for several days and admitted to his role in the scheme, as well as to shredding relevant documents and lying to federal investigators.

North was later indicted and convicted of obstruction of justice and other crimes. But the U.S. Court of Appeals for the D.C. Circuit overturned his conviction on the ground that it improperly relied on the fruits of his immunized testimony.

Prosecutors and agents working on the criminal case had taken great pains to avoid any exposure to North’s Congressional testimony, which was widely televised. But the Court of Appeals held that, for each individual government witness called at trial, prosecutors had to prove the witness had an independent basis to recall every fact about which they testified. The government was required to show that the witness’s recollection had not been influenced in any way by viewing North’s immunized testimony. Prosecutors ultimately were unable to meet that burden and dismissed the case.

The same concerns surround a decision to immunize Flynn. Congress could take steps to minimize any potential exposure to the testimony, such as having Flynn testify only in a closed session, but the risk to any potential future criminal case would still be substantial.

The Congressional grant of immunity in North’s case ended up torpedoing his criminal prosecution. Congress must take great care when considering whether to immunize Flynn, lest it be accused of doing the same thing in his case.